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THE DO-IT-YOURSELF GUIDE TO THE FAMILY COURTS
How To Navigate The Family Courts Without A Lawyer
Robert Berman B.C.L, LL.B
The author acknowledges the invaluable assistance of Magda Rogowska B.A. (HONS)
in the preparation of this book.
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Table of Contents
Preface........................................................................................................5
Chapter 1: The Crippling Cost of Access to Justice............................................6
Chapter 2: The Secret to Accessing Justice...Without Going Broke.....................7
Chapter 3: The Secret to Saving $50,000, or More..........................................8
Chapter 4: Alice in Wonderland....................................................................9
Chapter 5: An Overview of the Court Process.................................................10
The Family Courts in Ontario....................................................................................10
Commencing the Court Process................................................................................11
Making a Simple (Uncontested) Divorce Application...................................................12
Making a Joint Divorce Application..........................................................................14
Making a Contested Divorce Application (Applicants).................................................16
Making a Contested Divorce Application (Respondents)..............................................19
Court Fees.............................................................................................................23
Chapter 6: The Rules of the Court.................................................................25
Chapter 7: Forms before Substance..............................................................29
Chapter 8: Serving and Filing Court Documents..............................................35
Serving Court Documents.........................................................................................35
Filing Court Documents............................................................................................37
Chapter 9: What to Expect When Going to Court..........................................38
Case Management.................................................................................................38
Family Information Session.......................................................................................38
First Court Date and Case Conference......................................................................38
Motions.................................................................................................................39
Settlement Conference.............................................................................................41
Trial Management Conference.................................................................................41
Trial......................................................................................................................42
Chapter 10: Appealing the Court’s Decision..................................................43
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Chapter 11: Practical Tips for Your Day in Court............................................44
Chapter 12: Alternative to Court...................................................................45
Mediation..............................................................................................................45
Arbitration.............................................................................................................47
Mediation/Arbitration (“Med/Arb”).........................................................................47
Chapter 13: Lessons Learned........................................................................48
Chapter 14: MyOntarioDivorce.com.............................................................51
Chapter 15: The Truth About Family Law Disputes...........................................55
Chapter 16: Our Mission.............................................................................56
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Preface
I want to help you navigate your family law issues without a lawyer. Coming from me,
that may sound blasphemous. I can tell you right now that my colleagues aren’t happy
that I wrote this book. Let me explain why.
I’m an experienced and very expensive Family Law Lawyer. I typically represent high net
worth individuals, some having assets in the millions.
I’m also in court a lot. While that may sound exciting, ask any trial lawyer, and he or she
will tell you that it’s usually not. Most of our time is spent sitting around with our clients
waiting for our turn to address the Judge. This is particularly so when you’re bringing a
motion asking the Judge to make temporary decisions before trial.
I’ve been practicing for almost 30 years, which is long enough to know that the system is
woefully ill-suited to efficiently resolve most family law disputes. By “efficient,” I mean
quickly and cost-effectively. Nobody should have to wait months or years to have judicial
assistance in resolving their family disputes. Mothers need financial support. Fathers need
to see their children.
If parents and spouses can’t settle their differences amongst themselves, then they and
their children should be entitled to swift justice at a cost that will not leave them destitute.
Unfortunately, the family court process has become too slow and expensive to be
accessible or helpful to the ordinary person. Increasingly, people either turn to alternative
dispute resolution methods to settle their disagreements or they forgo hiring a lawyer and
represent themselves in court.
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Chapter 1: The Crippling Cost of Access to Justice
These days it can cost as much, or more, to get divorced as it does
to get married. As if the emotional costs of separating from a spouse
aren’t enough, the unreasonably high legal costs associated with
separation and divorce can be crippling. These costs force many
people to mortgage their homes, take out significant loans from the
bank, and borrow money from family or friends. For those who don’t
meet the requirements to obtain legal aid funding, high legal costs
make the court process inaccessible. As a result, many people opt to
self-represent.
However, the court process can be complicated, confusing, and frustrating. And
individuals who self-represent are responsible for informing themselves about the court’s
procedures and are held to the same standard as parties who have legal representation.
Sitting in court with my clients, I’ve had ample opportunity to observe the frustrations and
inequities suffered by the many litigants who either choose or are forced to represent
themselves because of the crippling costs of hiring a lawyer.
Not everyone needs a lawyer. There are an even greater number of people who simply
can’t afford one.
That being said, you should get legal advice before and during your case. Without a
lawyer to guide you through the family law rules, the legislation, and court documents,
you’ll hit a wall of frustration that will make you wonder why you even bothered in the
first place.
If you want to level the playing field and navigate the family court process without a
lawyer by your side that’ll bill you every step of the way, read on.
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Chapter 2: The Secret to Accessing Justice... Without Going Broke
While you should get legal advice before and during
your case, by self-representing and purchasing the
type of legal services you need only when you need
them, you can save thousands of dollars.
This Guide will tell you how to gain access to the
family courts in Ontario without going broke and what
to expect once you get there. I have also created an
interactive website (www.MyOntarioDivorce.com) to allow anyone to do their own
Simple or Joint Divorce Application, or Separation Agreement online, without a lawyer,
at a fraction of the typical cost. MyOntarioDivorce.com also offers a FREE Resource
Centre filled with useful information and links about divorce and separation. Furthermore,
it allows users to ask a Family Law Lawyer a legal question online. And, if your divorce is
contested, the site will direct you to the type of legal assistance you can afford without
having to pay retainers or hourly rates.
I wrote this Guide for those of you who can’t afford to retain a guy like me. Heck, even I
can’t afford to retain a guy like me. Unless your net worth is in the millions, you shouldn’t
have to. And you also shouldn’t have to spend your life savings trying to gain access to
justice.
People tend to have a love/hate relationship with lawyers, if they have a relationship with
them at all. My wife has to have a relationship with me and thank goodness for that
because without our wives or partners we lawyers would be very lonely indeed, given the
public’s perception of us. The legal process we’ve helped develop has significantly
contributed to the bad press we get. It’s so expensive and cumbersome that it seems to
only benefit lawyers.
When we need lawyers we seem to take on a “can’t live with them/can’t live without
them” type of mentality. Inevitably, when you’re going through a divorce or custody
battle, at some point before and during the process you’ll require legal advice. The truth
is, we do need lawyers but they should be prepared to unbundle their services. By that I
mean you, the consumer, should be able to buy their advice and guidance when you
need it. For most cases in the family courts this translates to self-representing and
purchasing legal advice to help you do so on an “as you need it” basis. The most
expensive part of the process is having your lawyer represent you in court with a majority
of what you pay for going towards the lawyer’s waiting time. And who can afford that?
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That’s why I wrote this Guide and created MyOntarioDivorce.com- to deliver to you a
way to save the money you’ll need to get that advice by giving you the information and
tools necessary to navigate the family law courts with confidence. And if you find yourself
in need of legal advice, our website will even refer you to a Family Law Lawyer
dedicated to helping you help yourself. I will tell you more about this later. For now, let
me say that MyOntarioDivorce.com is different from other websites that offer assistance
with obtaining uncontested divorce and/or drafting Separation Agreements.
It goes beyond this by using its online questionnaire system which simulates the interview
a lawyer would conduct and imports your personal information into your Application for
Divorce or Separation Agreement. All you need to do is answer the questionnaire, hit
download, and the completed Application or Agreement emerges on your computer. It
also offers a FREE Resource Centre filled with useful information and links about divorce
and separation. And, if you have additional questions you’d like us to answer, you can
use our Ask Our Lawyers service to get a quick online response from one of our
experienced Family Law Lawyers. MyOntarioDivorce.com will even help you if you and
your spouse CANNOT agree on issues by referring you to our Founder’s law firm,
Berman Barristers, where you will be offered a FREE Initial Consultation Call with an
experienced Family Law Lawyer who will analyze your current situation and issues and
recommend a future course of action from an array of the firm’s unique and innovative
solutions that range from do-it-yourself with assistance to traditional Lawyer
representation.
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Chapter 3: The Secret to Saving $50,000.00 or More
Typically, when you retain a lawyer after separating from
your spouse, your lawyer will deal with your case from
the beginning to the end. Just to get your case started
and before any work is done, however, you’ll have to
pay the lawyer a retainer in the range of $5,000 to
$10,000. By the time your case is finally heard by a Trial
Judge, the average case can cost you $50,000.00 or
more. While you should get legal advice before and
during your case, by preparing the court documents
necessary for self-representation and consulting a lawyer only when you need legal
advice about a particular issue, you can save as much as $50,000.00, if not more.
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Chapter 4: Alice in Wonderland
Navigating your way through the family courts without a lawyer as your guide can make
you feel like Alice trying to find her way around Wonderland without the Rabbit leading
the way. I wrote this Guide to be your Rabbit.
The Guide is at its best when used together with the auto-generated court forms available
on my website (www.MyOntarioDivorce.com). Let’s face it, court forms can be
complicated and it wouldn’t surprise me if you would rather complete your Income Tax
Return. And, even if you manage to fill out the correct forms, good luck getting past the
clerk behind the counter whose role in life seems to be the Judge’s gate-keeper: denying
access to anyone whose forms haven’t been filled out to a tee. An unmarked box or
missing tick is enough to send you back to the top of the rabbit hole.
Let’s say you got past the clerk. At this point you may encounter a Judge who’d be happy
to get rid of a self-represented litigant with what he or she deems “deficient” forms.
“Come back next time with the form properly filled out,” or better still, “Come back with a
lawyer.” The fact that you can’t afford a lawyer, which is why you’re on your own in the
first place, somehow eludes this type of Judge. Not to mention the fact that by putting you
off for another day, he or she is actually putting your life on hold.
Don’t get me wrong, not all Judges are indifferent and the process used for litigating
family disputes doesn’t help, but this is the system that hard-working taxpayers like you
have to put up with since the management of the justice system has been left in the hands
of lawyers and Judges. A good dose of free enterprise and professional management is
sure to be the cure! But that’s a topic for a different book.
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Chapter 5: An Overview of the Court Process
Until our politicians wake up to the fact that family law
litigants are customers whose expectations should be
met and exceeded by the Judges and their gate-keepers,
while you’re self-representing in the family courts, your
best option for a shot at justice is
MyOntarioDivorce.com and this Guide. The Guide will
lead you through the court process as it applies to family
law cases in Ontario. While it’s not exhaustive and some steps may vary depending
upon the level and location of the court, it does give you a good overview of the court
process as well as what to expect.
THE FAMILY COURTS IN ONTARIO
In Ontario, there are 3 different courts that deal with family law cases:

Superior Court of Justice;

Ontario Court of Justice; and

Family Court of the Superior Court of Justice
Superior Court of Justice
The Superior Court of Justice can hear cases involving a variety of family law issues
including divorce, property, and support claims. It does not have jurisdiction to hear
adoption and child protection cases. These types of cases are commonly heard in the
Family Court of the Ontario Court of Justice.
Ontario Court of Justice
The Ontario Court of Justice hears a more limited range of family law cases. It can’t hear
cases involving a request for divorce, the division of family property, or exclusive
possession of the matrimonial home. These issues are governed by Federal Statute and
must be heard either in the Superior Court of Justice or the Family Court.
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Family Court
The Family Court is a branch of the Superior Court of Justice and is located in: Barrie,
Bracebridge, Brockville, Cobourg, Cornwall, Hamilton, Kingston, L’Orignal, Lindsay,
London, Napanee, Newmarket, Oshawa, Ottawa, Perth, Peterborough, and St.
Catherine’s. It also sits regularly in Huntsville, Collingwood, Midland, and Orillia.
The Family Court is the only court in Ontario that can hear all types of family law cases,
including:
 Divorce;
 Child and Spousal Support;
 Custody and access to children;
 Division of family property;
 Exclusive possession of the matrimonial home;
 Adoption; and
 Child protection.
For a listing of all the family law courts in Ontario and their addresses visit:
http://www.attorneygeneral.jus.gov.on.ca/english/courts/Court_Addresses/
COMMENCING THE COURT PROCESS
The court process in a family law case commences when either you or your spouse brings
an Application which sets the issues you want the court to determine and the orders you
are asking the judge to make. If you’re commencing the Application, you’re called the
“Applicant.” Your spouse is called the “Respondent.”
If you’re married, in most cases you’ll be bringing a “General Application for Divorce,”
meaning you’re seeking a divorce and asking the court to resolve certain issues between
you and your spouse. If you and your spouse agree to divorce, and if there are no issues
remaining to be determined such as child and spousal support and custody, then you can
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bring a “Simple Application for an Uncontested Divorce.”
You can also commence a “General Application” if you were married and aren’t seeking
a divorce, but are asking the court to resolve certain issues between you and your spouse
or if you were living in a common law relationship and are asking the court to resolve
certain issues between you and your common law spouse. Furthermore, you can
commence a “General Application” if you have a child with someone, but never lived
together.
If you’re claiming support for your children and/or yourself, and/or if you’re claiming an
interest in property and/or exclusive possession of the matrimonial home, you’ll need to
complete and attach a “Financial Statement” to your Application.
You generally bring your Application in the municipality where you live or, in a custody
and access case, in the municipality where your children live. You’ll need to take your
Application to the court office in this municipality to be issued. The court will issue you a
court file number for your case. There’s a fee for filing your Application.
After you’ve filed your Application with the court, someone you know or hire must
personally give a copy of the Application and corresponding documents to your spouse.
This is known as “serving” the other party.
After your spouse has been served, the person who served him or her must complete an
“Affidavit of Service” documenting the fact that they served the Application and how. This
Affidavit must later be filed with the Application in the court’s copy of the Continuing
Record.
Your spouse will then typically have 30 days from the date he or she was served to
respond to your Application by preparing and serving on you an “Answer.”
As the Applicant, you have the opportunity to Reply to your spouse’s Answer. This is only
if the Answer raises new issues that weren’t addressed in your Application. The time
period for serving and filing your Reply is typically 10 days from the date you were
served.
The family court process can be complicated to follow.
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MAKING A SIMPLE DIVORCE APPLICATION:
Step
Description
1.
Complete and sign a “Simple Application for Divorce” [Form 8A].
Check off box marked “Simple.”
2.
Bring Simple Application for Divorce [Form 8A] to Superior Court
of Justice or Family Court to issue Simple Application and obtain
a Court file number. Obtain Court file number, fill out Registration
of Divorce Proceedings form to request Clearance Certificate from
the Central Registry of Divorce Proceedings Office and pay court
filing fee of $167.
3.
Serve copy of issued Simple Application [Form 8A] on your
spouse by personal service.
4.
Prepare “Affidavit of Service” [Form 6B] for signature by person
who served your spouse.
5.
Go back to Court to file Simple Application [Form 8A] and
Affidavit of Service [Form 6B].
6.
Wait 30 days for spouse to respond to Simple Application with
his or her Answer [Form 10].
7.
If Answer [Form 10] filed and there are issues to be determined,
matter proceeds as Application (General) [Form 8]. Refer to stepby-step court process instructions for Contested Divorces.
8.
If no Answer [Form 10] served and filed, provided that you have
been separated for at least one full year, apply for Divorce Order.
9.
Complete “Affidavit for Divorce” [Form 36] and draft “Divorce
Order” [Form 25A].
10.
Arrange to swear Affidavit for Divorce [Form 36] in front of a
Commissioner for Taking Affidavits.
11.
Bring Affidavit for Divorce [Form 36] and draft Divorce Order
[Form 25A] to Court for filing. Pay court filing fee of $280.
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12.
Await receipt of Clearance Certificate from the Central Registry of
Divorce Proceedings Office. Typically takes 6 to 8 weeks
following request.
13.
Upon receipt of Clearance Certificate, wait for judge to review
your material and decide whether or not to grant you a divorce.
14.
If judge decides to grant divorce, await receipt of copy of Divorce
Order [Form 25A] (typically takes 3 to 6 weeks).
Wait 31 days after date of the Divorce Order for divorce to take
effect.
Request Certificate of Divorce [Form 36B] from the Court. Pay
court fee of $19.
MAKING A JOINT DIVORCE APPLICATION:
Step
Description
1.
Ensure that you and your spouse agree that you have been
separated for at least one calendar year. If not, wait for one year
to have expired before commence steps to obtaining a joint
divorce.
2.
If so, complete and sign a “Joint Application for Divorce” [Form
8A]. Check off the box marked ‘Joint’.
3.
If your Joint Application includes claims which are consented to
by both you and your spouse, you may need to complete other
documents depending on the nature of your claims.
4.
If you are making a claim for support, but not for property or
exclusive possession of the matrimonial home, both you and your
spouse need to fill out and sign in front of a Commissioner for
Taking Affidavits a “Financial Statement in Form 13”.
If you are making a claim for support and for property or
exclusive possession of the matrimonial home, both you and your
spouse need to fill out and sign in front of a Commissioner for
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Taking Affidavits a “Financial Statement in Form 13.1”.
5.
If you have copies of your Income Tax Returns and Notices of
Assessment for the 3 most recent taxation years, make 2 copies:
one for the court and one for your spouse. Your spouse will need
to do the same. Exchange copies of Returns and Notices of
Assessment with your spouse.
6.
If you do not have Income Tax Returns and Notices of Assessment,
fill out, sign and mail to Canada Revenue Agency a “Direction to
Canada Revenue Agency” [13A]. If this is also the case for your
spouse, he or she will have to do the same.
7.
If a claim for support has been made, fill out a “Support
Deduction Information Form” [Form 01] and a “Support Deduction
Order” [Form 01].
8.
Complete “Affidavit for Divorce” [Form 36] and draft “Divorce
Order” [Form 25A].
9.
Arrange to swear Affidavit for Divorce [Form 36] in front of a
Commissioner for Taking Affidavits.
10.
Arrange for spouse to sign Joint Application [Form 8A] and to
swear Affidavit for Divorce [Form 36] in front of a Commissioner
for Taking Affidavits.
11.
Bring Joint Application for Divorce to Superior Court of Justice or
Family Court for filing, together with all other documents including
any Financial Statements [Form 13/13.1], the Affidavit for
Divorce [Form 36], the draft Divorce Order [From 25A] and a
copy of your and your spouse’s Income Tax Returns and Notices
of Assessment.
12.
Fill out Registration of Divorce Proceedings form to request
Clearance Certificate from the Central Registry of Divorce
Proceedings Office and pay court filing fee of $447.
13.
Await receipt of Clearance Certificate from the Central Registry of
Divorce Proceedings Office. Typically takes 6 to 8 weeks
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following request.
14.
Upon receipt of Clearance Certificate, wait for judge to review
your material and decide whether or not to grant a divorce.
15.
If judge decides to grant divorce, await receipt of copy of Divorce
Order [Form 25A] (typically takes 3 to 6 weeks).
16.
Wait 31 days after date of the Divorce Order for divorce to take
effect.
Request Certificate of Divorce [Form 36B] from the Court. Pay
court fee of $19.
MAKING A CONTESTED DIVORCE APPLICATION (APPLICANTS):
Step
Description
1.
Complete “Application (General)” [Form 8].
2.
If NO child and/or spousal support or property disputes, skip
to step 4.
3.
Complete “Financial Statement” (2 options):
(a)
if claiming support, but not making a claim in respect of
property, complete Form 13; or
(b)
if claiming support and making a property claim,
complete Form 13.1.
4.
Prepare “Continuing Record” comprising of “Documents
Volume 1” and “Endorsements Volume 1” and “Cumulative
Contents for the Continuing Record.”
5.
If there is an urgent matter that needs to be addressed by the
court ASAP, (i.e.: restraining order), skip to step 19.
6.
Take Continuing Record enclosing Application and Financial
Statement and additional copy of both documents to Court to
be issued and filed. Pay court fees for filing Application.
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7.
Serve spouse with one copy of Continuing Record: both
Documents and Endorsements Volumes enclosing copies of
Application and Financial Statement if applicable. Also serve
spouse with copies of your Income Tax Returns and Notices of
Assessment for last three taxation years.
8.
Complete “Affidavit of Service” [Form 6B] & file Affidavit with
the Court, together with a copy of your Income Tax Returns and
Notices of Assessment for the last three taxation years.
9.
Wait 30 days for your spouse to respond to your Application
with his or her Answer.
10.
If court action in Toronto, go to Family Information Session and
get certificate of attendance. If court action is in Oshawa,
attend First Appearance.
11.
If you DO NOT want to respond to your spouse’s Answer, skip
to step 13.
12.
If want to respond, complete “Reply” [Form 10A].
13.
Obtain Case Conference date from Court Clerk by filing
Conference Notice [Form 17].
14.
Complete “Case Conference Brief” [Form 17A].
15.
Serve spouse with Case Conference Brief and file Brief with the
Court, with your Affidavit of Service [Form 6B], at least 7 days
prior to Case Conference date.
16.
Prepare and fax Confirmation [Form 14C] to the court,
providing a copy to your spouse, by 2:00p.m. 2 days prior to
Case Conference Date.
17.
Attend Case Conference.
18.
If everything is resolved, skip to step 40.
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19.
20.
If require an in interim Order of the Court, complete “Notice of
Motion” [Form 14] and “Affidavit” [Form 14A]. If court is 393
University Avenue or issues are complex, prepare a Factum
setting out the facts you are relying on in support of your
motion and the case law or legislation that support the orders
you are seeking. Arrange to sign Affidavit in front of a
Commissioner for taking Affidavits. Note: A motion for interim
relief can be brought at any time before the trial, unless
restrictions are imposed by a judge.
Serve spouse with copy of motion materials and file motion
materials in Continuing Record with the Court by 2 p.m. 2 days
prior to motion, together with Affidavit of Service [Form 6B],
with the exception of the Factum which is filed separately.
21.
Update Table of Contents for Continuing Record.
Prepare and fax Confirmation [Form 14C] to the court,
providing a copy to your spouse, by 2:00 p.m. 2 days prior to
motion date.
22.
Attend motion.
23.
Obtain date for Settlement Conference by filing Conference
Notice with the clerk [Form 17].
24.
Complete ‘Settlement Conference Brief’ [Form 17C].
25.
Serve Settlement Conference Brief and then file Brief with the
Court, with Affidavit of Service [Form 6B], 7 days prior to date
of Settlement Conference.
26.
Prepare and fax Confirmation [Form 14C] to the court,
providing a copy to your spouse, by 2:00 p.m. 2 days prior to
Settlement Conference Date.
27.
Attend Settlement Conference.
28.
If case is settled, skip to step 40.
29.
Obtain Trial Management Conference date by filing with the
clerk Conference Notice [Form 17]
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30.
Complete “Trial Management Conference Brief” [Form 17E].
31.
Serve Trial Management Conference Brief on your spouse and
then file Brief, with Affidavit of Service [Form 6B], 7 days prior
to date of Settlement Conference.
32.
Prepare and fax Confirmation [Form 14C] to the court,
providing a copy to your spouse, by 2:00 p.m. 2 days prior to
Trial Management Conference Date
33.
Attend Trial Management Conference.
34.
If case resolved, skip to step 40.
35.
Obtain dates for trial.
36.
Prepare “Trial Record” 30 days prior to commencement of trial.
37.
Attend Pre-Trial.
38.
Attend trial.
39.
Await Order of judge hearing trial.
40.
FINISH
MAKING A CONTESTED DIVORCE APPLICATION (RESPONDENTS):
Step
1.
Description
Accept service of Application (General) [Form 8].
2.
If wish to respond to Application and/or make your own
claim(s), within 30 days complete Answer [Form 10].
3.
If NOT responding to a claim for spousal and/or child support
and/or for property, or if NOT making a claim for spousal
and/or child support and/or for property skip to step 5,
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otherwise carry on to step 4.
4.
Complete “Financial Statement” (2 options):
(a) if responding to or claiming support, but not responding
to or making a claim in respect of property,
complete Form 13; or
(b) if responding to or claiming support and responding to
or making a property claim, complete Form 13.1.
5.
If there is an urgent matter that needs to be addressed by the
court ASAP, (i.e.: restraining order), skip to step 17
6.
Serve spouse or spouse’s lawyer, if represented, with a copy of
Answer [Form 10] and Financial Statement [Form 13 or 13.1]
if applicable. Also serve spouse with copies of your Tax Returns
and Notices of Assessment for last three taxation years.
7.
Complete “Affidavit of Service” [Form 6B] & file Answer,
Financial Statement and Affidavit with the Court. Give the court
clerk a copy of your Tax Returns and Notices of Assessment for
last three taxation years. Update Cumulated Table of Contents
for Continuing Record.
8.
Wait 10 days for spouse to respond to Answer with his or her
Reply [Form 10A].
9.
If court action in Toronto, go to Family Information Session and
get certificate of attendance. If court action is in Oshawa,
attend First Appearance.
10.
If Applicant has not done so, obtain Case Conference date
from Court Clerk by filing Conference Notice [Form 17].
11.
Complete “Case Conference Brief” [Form 17A].
12.
Serve Spouse with Case Conference Brief and file Brief with
Court, with Affidavit of Service [Form 6B], at least 4 days prior
to Case Conference date.
13.
Prepare and fax Confirmation [Form 14C] to the court,
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providing a copy to your spouse, by 2:00 p.m. 2 days prior to
Case Conference Date.
14.
Attend Case Conference.
15.
If everything is resolved, skip to step 39.
16.
If require an in interim Order of the Court, complete “Notice of
Motion” [Form 14] and “Affidavit” [Form 14A]. If at 393
University Avenue or issues for motion are complex, prepare a
Factum setting out the facts you are relying on in support of
your motion and the case law or legislation that support the
orders you are seeking. Arrange to sign Affidavit in front of a
Commissioner for taking Affidavits. Note: a motion for interim
relief can be brought at any time, unless restrictions are
imposed by a judge, before the trial.
17.
If Applicant has brought a motion, respond to Applicant’s
motion and Affidavit with Responding Affidavit [Form 14A]. If
want to bring own motion, prepare a Notice of Cross-Motion
[Form 14]. If at 393 University Avenue or issues for motion are
complex, prepare a Factum setting out the facts you are relying
on in response to Applicant’s motion or in support of your
cross-motion and the case law or legislation that support the
orders you are seeking. Arrange to sign Affidavit in front of a
Commissioner for taking Affidavits. Note: a motion for interim
relief can be brought at any time, unless restrictions are
imposed by a judge, before the trial.
18.
Serve spouse with copy of motion materials and file motion
materials in Continuing Record with the Court by 2 p.m. 2 days
prior to date of motion, together with Affidavit of Service [Form
6B], with the exception of the Factum which is filed separately.
Update Table of Contents for Continuing Record.
19.
Prepare and fax Confirmation [Form 14C] to the court,
providing a copy to your spouse, by 2:00 p.m. 2 days prior to
motion date.
20.
Attend motion.
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21.
If Applicant has not already done so, obtain date for Settlement
Conference by filing Conference Notice [Form 17] with court
clerk.
22.
Complete ‘Settlement Conference Brief’ [Form 17C].
23.
Serve Settlement Conference Brief on your spouse and file Brief
with Affidavit of Service [Form 6B] 4 days prior to date of
Settlement Conference.
24.
Prepare and fax Confirmation [Form 14C] to the court,
providing a copy to your spouse, by 2:00 p.m. 2 days prior to
Settlement Conference Date.
25.
Attend Settlement Conference.
26.
If case is settled, skip to step 39.
27.
If Applicant has not already done so, obtain Trial Management
Conference date by filing Conference Notice [Form 17] with
the court clerk.
28.
Complete “Trial Management Conference Brief” [Form 17E].
29.
Serve Trial Management Conference Brief on your spouse and
file Brief with Affidavit of Service 4 days prior to date of
Settlement Conference.
30.
Prepare and fax Confirmation [Form 14C] to the court,
providing a copy to your spouse, by 2:00 p.m. 2 days prior to
Trial Management Conference Date.
31.
Attend Trial Management Conference.
32.
If case resolved, skip to step 39.
33.
Obtain dates for trial.
34.
Add to Trial Record not later than 7 days prior to the start of
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trial.
35.
Attend Pre-Trial.
36.
Attend trial.
37.
Await Order of judge hearing trial. If case resolved, skip to
step 39.
38.
FINISH
COURT FEES:
Ontario Court of Justice
1.
For making copies of documents:
i. not requiring certification, per page
ii. requiring certification, per page
$2.00
3.50
Superior Court of Justice and Family Court
1.
On the filing of an application with a
divorce claim
$167.00
2.
On the filing of an application, not
including a divorce claim
$157.00
3.
On the filing of an answer, other than an
answer referred to in item 4
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4.
On the filing of an answer where the
answer includes a request for a divorce
by a respondent
167.00
5.
On the placing of an application on the
list for hearing
280.00
6.
On the issue of a summons to a witness
19.00
7.
On the issue of a certificate with not
more than five pages of copies of the
Court document annexed
19.00
For each additional page
8.
2.00
For making copies of documents,
i. not requiring certification, per
2.00
ii. requiring certification, per
3.50
page
page
9.
For making up and forwarding papers,
documents and exhibits
65.00 and the transportation
costs
No fees are payable for the filing of an Application, the filing of an Answer, or the
placing of an Application on the list for hearing in respect of,
(a) proceedings under the Child and Family Services Act, the Children’s Law
Reform Act, the Family Law Act (except Parts I and II), the Family Responsibility
and Support Arrears Enforcement Act, 1996, the Marriage Act or the
Interjurisdictional Support Orders Act, 2002; or
(b) proceedings to enforce an order for support, custody or access made under
any of these Acts.
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Chapter 6: The Rules of Court
All family law cases which reach the court are governed by the Ontario Family Law Rules.
These procedural rules govern the court process and must be followed by everyone
accessing the courts. They’re allegedly designed to promote early resolution of family law
cases but in practice, they often prolong and complicate the process and make an
already costly enterprise more expensive both financially as well as emotionally.
If you must come to the court to resolve your dispute, you’re responsible for familiarizing
yourself with the Rules. Here are 10 Rules that you must know about:
1.
Application must be served by special service.
Rules 6(3) and 8(5): The Application must be served on the Respondent by special
service. This means that the Application needs to be served by using one of the
following four methods:
2.
(i)
Providing the Respondent with a copy of the issued Application
personally. This is the most common method of service; or
(ii)
Serving two copies of the issued Application on the Respondent’s Solicitor
of Record, provided the solicitor has agreed to accept service and is
prepared to accept service in writing on one copy of the Application; or
(iii)
Mailing a copy of the Application to the Respondent at his or her last
known address, together with an Acknowledgment of Service Card in
Form 6 for the Respondent to sign and return. Note: Service is not valid
unless the Acknowledgment is returned to you and filed in the Continuing
Record; or
(iv)
Leaving a copy at the Respondent’s place of residence, in an envelope
addressed to the Respondent, with an adult person who appears to be
residing at the same address, and on the same day or the next, mailing
another copy of the Application to the Respondent at this address.
No Motion before a Case Conference is held on the substantive issues.
Rule 14(4): Unless there’s a situation of urgency or hardship, you can’t serve
motion materials seeking relief from a judge, for example custody of your children
or child support, and a motion can’t be heard before a Case Conference has been
held on the substantive issues in your case. Typically a Case Conference is held
within 2-3 months of the issuance of your Application.
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3.
You may only bring a Motion prior to a Case Conference if there’s a situation of
urgency, hardship, etc.
Rule 14(5): The exception to Rule 14(4) described above is that you can bring a
Motion if there’s a situation of urgency, hardship, or if a judge considers a Case
Conference isn’t required for some other reason in the interest of justice.
4.
Serve Motion materials 4 days in advance of Motion if you’re bringing the Motion.
Rules 3(4)1 and 14(11): If you’re the person bringing the Motion (with notice) you
must serve your Motion materials on all the parties, including your Notice of
Motion and any supporting Affidavits, including all Exhibits, at least 4 days prior
to the date your Motion is scheduled to be heard.
Rule 3(4)1 contains a chart which sets out when you must serve your motion
materials if your motion is to be heard on a particular day of the week:
Service on
Motion may be heard on
Monday
Friday
Tuesday
Monday
Wednesday
Tuesday
Thursday
Wednesday
Friday
Thursday
Saturday
Friday
Sunday
Friday
5.
Serve responding materials 2 days in advance of the Motion if you are responding
to the Motion.
Rule 14(11.1): If you wish to respond to a Motion brought against you, you must
serve and file your Affidavit with the Court at least 2 days prior to the date the
Motion is scheduled to be heard.
However, if you wish to bring a Cross-Motion, seeking your own relief, you must
serve your Cross-Notice of Motion and supporting Affidavit at least 4 days prior to
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the date the Motion is scheduled to be heard (Rule 14(11). If you will not have 4
clear days which to serve your materials, ask opposing counsel or your spouse for
a Consent to Late Filing or seek an adjournment of the Motion.
6.
File materials by 2:00 p.m. two days before the Motion date.
Rule 14(11.1): All materials that you wish the judge to review before he or she
hears the Motion, must be filed in the court by 2:00 p.m. two days before the
Motion date.
7.
Faxing Form 14C Confirmation Confirming Motion.
Rules 14(11)(c): If you’re the party bringing the Motion (with notice) you must fax
to the Court a Form 14C Confirmation confirming the Motion is going ahead by
2:00 p.m. two days before the date scheduled for the Motion.
You’ll need to contact the other party’s lawyer or the other party directly before
completing the form to find out what issues will be argued at the Motion, how
much time the other party will realistically require to present his or her case, and
what material he or she wishes the judge to read.
Before or after you have faxed the Form to the Court, you need to serve the
opposing counsel or party with the Form.
8.
Timeline for Service of Conference Briefs:
Rule 17(13.1): If you’re the party requesting the Conference (of if the Conference
is not requested by a party, and you’re the Applicant), you must serve and file
your Conference Brief 7 days prior to the date scheduled for the Conference. The
other party must serve and file his or her Brief 4 days prior to the date of the
Conference.
9.
Faxing Form 14C Confirmation Confirming Conference.
Rules 17(14): Both parties must fax to the Court a Form 14C Confirmation
confirming the Conference is going ahead by 2:00 p.m. two days before the date
scheduled for the Conference.
You’ll need to contact the other party’s lawyer or the other party directly before
completing the form to find out what issues will be discussed at the Conference
and how much time the other party will realistically require to discuss his or her
case.
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Before or after you have faxed the Form to the Court, you need to serve the
opposing counsel or party with a copy of the Form.
10.
Case Conference, Settlement Briefs, and Factums don’t form part of the Continuing
Record.
Other than a few exceptions, all the court documents you file in your case will be
filed in the Continuing Record. The exceptions include the Case Conference Brief
(Rule 17(22)), Settlement Conference Brief (Rule 17(22.2)), and your Factum.
The Case Conference and Settlement Conference Briefs will be returned to the
parties after the Conference is held.
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Chapter 7: Forms before Substance
When you get married you fill out one form and pay $25 to get a license. When you
have a child, you don’t need any paperwork. Yet, if you want to get a divorce you have
to pay $167 to begin the process and $280 at the end. In addition, there are a number
of forms that need to be completed and filed along the way. Then there are ramifications
if your forms are not properly completed.
For starters, here are the forms that you need to know about (incidentally, the form
number relates to the Rule that corresponds to the form).
Application (Form 8) - For a contested divorce

Starts a family law case in the Ontario courts and sets out the issues that the court is
being asked to resolve.

If married, you can make a claim for a divorce and can ask the court to resolve
certain issues between you and your spouse including child and spousal support,
custody or access arrangements for the children; and a request for division of the
property you accumulated during your marriage.

If you’re married but aren’t seeking a divorce, or if you lived in a common law
relationship, you can use the Application to ask the court to resolve certain issues
between you and your spouse including child and spousal support, custody or
access arrangements for the children; and a request for division of the property you
accumulated during your marriage (but only if you’re married).
Simple Application (Form 8A) - For uncontested divorce

The divorce isn’t defended or disputed by the other spouse and the only thing being
requested is a divorce.

All the issues between you and your spouse such as the division of your assets,
support and custody, and access of your children have been resolved, usually by
means of a Separation Agreement.

If there are issues, such as the division of assets which you and your spouse have
not been able to resolve, then you’ll need to bring a General Application for
Divorce and make a claim with respect to these unresolved issues.
Joint Application (Form 8A)

Brought by both spouses jointly.
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
Must be on the consent of both spouses.

May deal with claims such as custody and access in addition to divorce as long as
both parties consent to all claims and their terms.

Both spouses will be considered Applicants and therefore, both spouses must sign
the Application.
Answer (Form 10)

If you’re served with an Application and you don’t agree with the Applicant’s
claims, you must serve and file an Answer

To be served and filed within 30 days of having been served in Canada or 60 days
if you were served outside Canada or the United States of America.

You can make your own requests to the court to resolve certain issues between you
and your spouse including child and spousal support, custody or access
arrangements for the children; and a request for division of the property
accumulated during the marriage (but only if you’re married).

If you don’t serve an Answer within the time limit prescribed, a judge may make a
decision based on the Applicant’s evidence alone.
Reply (Form 10A)

If you’re the Applicant and new claims or issues were raised in the Respondent’s
Answer that you wish to respond to, you can respond in a Reply.

You can’t raise new issues or add facts that should have been included in your
Application.

Reply must be served and filed within 10 days of being served with the Answer.
Financial Statement (Without Property Claims) – Form 13

Complete, serve, and file with your Application if you’re claiming support.

Complete, serve, and file with your Answer if you’re responding to a claim for
support or if you’re not serving an Answer and are responding to a claim for
support.

Don’t need to complete if your only claim for support is child support in the table
amount specified under the Child Support Guidelines.
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
Provides detailed information about the amount and sources of your income; your
monthly living expenses; and property and debts.

Needs to be updated at each new stage in the court process if previous Financial
Statement is over 30 days old.
Financial Statement (With Property Claims) – Form 13.1

Complete, serve, and file with your Application if you’re claiming support, an
interest in property and/or exclusive possession of the matrimonial home and its
contents.

Complete, serve, and file if you’re making or responding to a claim for property
and/or exclusive possession of the matrimonial home.

Don’t need to complete if your only claim for support is child support in the table
amount specified under the Child Support Guidelines and you’re not making any
claims affecting property or exclusive possession of the matrimonial home and its
contents.

Provides detailed information about the amount and sources of your income; your
monthly living expenses; and your property and debts as at the date of your
marriage, date of your separation, and current date.

Needs to be updated at each new stage in the court process if previous Financial
Statement is over 30 days old.
Notice of Motion (Form 14)

A motion is a court procedure that’s used to obtain certain orders from a judge.

Document used to bring a motion. Must be served on spouse 4 clear days before
the intended date for the motion.

Informs the other party that you intend to bring a motion, what order(s) you’re
asking the court to make, and the date you intend to have the motion heard.

Informs the judge of what documents he or she needs to review in the Continuing
Record in order to deal with your motion.
Affidavit (General) (Form 14A)

Submitted as evidence in support of your motion.
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
Contains information within your personal knowledge which supports your motion
and the orders you’re requesting.

Also submitted in response to a motion brought against you. Purpose is to set out
any disagreement with the evidence submitted by your spouse in support of his or
her motion.

Affidavits submitted in support of a motion under Rule 15 to change a final order or
agreement must contain certain information set out in Rule 15(7).

Affidavits in support of a motion for summary judgement under Rule 16 must set out
specific facts showing that there’s no genuine issue requiring a trial.
Case Conference Brief (Form 17A)

Asks for detailed and comprehensive information about the facts and issues in your
case.

If being used for the first Case Conference, the Brief is typically a summary of your
Application or Answer.

Asks you to advise which issues have been settled and which have not.

Not filed in the Continuing Record. Instead it’s filed with the court and handed
separately to the judge hearing the Case Conference. It will either be destroyed or
returned at the end of the Conference.
Settlement Conference Brief (General) (Form 17C)

Asks for detailed information about the facts and the issues for the Settlement
Conference.

Asks you to advise which issues have been settled and which have not.

Asks you what order, if any, you wish the court to make.

Not filed in the Continuing Record. Instead it’s filed with the court and handed
separately to the judge hearing the Settlement Conference. It will either be
destroyed or returned at the end of the Conference.
Trial Management Conference Brief (Form 17E)
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
The goal of the Trial Management Conference is to facilitate the orderly and swift
conduct of the trial. It is also the last opportunity to settle outstanding issues with the
assistance of the judge hearing the Conference.

The Trial Management Conference Brief asks for information on what issues have
been resolved, what issues are for trial, and what procedural matters need to be
addressed prior to trial.

Asks litigants to list the witnesses they plan to call at trial and the estimated length of
the trial.

An opening statement for the trial must be attached to the Brief. This statement
should summarize your position on each issue being submitted to trial.
The Continuing Record

The Continuing Record is a record made under Rule 9 of the Family Law Rules
containing written documents in a case that are filed with the court.

A Continuing Record is comprised of an Endorsements Volume and a Documents
Volume.

The Endorsements Volume will contain a cumulative Table of Contents, an
Endorsements section that will contain reasons for judgment and Minutes of
Settlement, and an Orders section.

The Documents Volume will contain documents filed in the case, including
Applications, Answers, Replies, Affidavits of Service, Financial Statements, Notices
of Motion, Affidavits, and Trial Management Conference Briefs. Case Conference
and Settlement Conference Briefs and Facta for motions don’t form a part of the
Continuing Record.

In most circumstances, the Continuing Record is prepared by the Applicant. The
exception is where one spouse commences an uncontested Divorce Application in
which only a divorce is being claimed and the Respondent files an Answer. If this is
the case, then the Respondent will start the Continuing Record when he or she files
their Answer.

Each new Application or Motion to Change a Final Order starts a new volume to
the Continuing Record.
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
The Endorsements Volume will have a yellow cover, which will include on it the
court file number and names of the parties in the case. The Documents Volume will
have a red cover and will include the same information.

For the volume(s) of the Record containing documents relating to a Motion to
Change a Final Order, the cover must identify the Order that is the subject of the
motion. Below the boxes where the parties names and their lawyers appear, state:
“Motion to Change Final Order of Mr./Madam Justice __________, dated
__________, with respect to __________.
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Chapter 8: Serving and Filing Court Documents
SERVING COURT DOCUMENTS:
“Serving” documents means providing copies of court
documents to the other party in the court case. By serving
the other party, you are notifying him or her of the step
you are taking in the process and of the facts and
information you will be presenting to the court.
There are two types of service:
 Special Service
 Regular Service
Special Service
Applications, for example, must be served on your spouse by “special service.” The
following methods can be used:
 Having someone other than you, handing a copy of the Application to the Respondent
or the Respondent’s lawyer, who has agreed to accept service on the Respondent’s
behalf. His or her lawyer will need to complete an Affidavit of Service and provide you
with an original copy to be filed with the Application and your Affidavit of Service in
the Continuing Record; or
 Having someone other than you, handing a copy of the Application to any person at
the Respondent’s home who appears to be an adult person living at that address and
within one day, mailing a copy to the Respondent at that address; or
 Mailing a copy of the Application to the Respondent’s home address together with an
Acknowledgment of Service card (Form 6). Service will only be valid when the
Respondent returns the signed Acknowledgement to you. This method can be risky
depending on the state of your relationship with the Respondent as you are relying on
him or her to return the signed Acknowledgment to you.
Regular Service
Once the Application has been served, most other documents, including Answers, can be
served by “regular service.” Regular service includes special service, plus:
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 Mailing or couriering the documents to the other party or his or her lawyer;
 Faxing the document(s) to the other party or his or her lawyer, provided the
document(s) is no more than 16 pages, including any cover page. If the document is
going to be more than 16 pages, you must obtain the consent of the other party or his
or her lawyer to send the document by fax.
If you’re unable to locate the person to be served, or if that person is avoiding being
served, you can bring a motion to the court without notice asking the court for permission
to notify that party in some other way, such as mailing the document to his or her last
known address, or for an order that service isn’t required.
Applicants don’t serve Applications on the Respondent. You can ask a friend or family
member to assist you.
It’s important to know when the service is considered effective as this determines the time
period in which the other party must respond to your document.
Personal Service
If the document is handed personally to the Respondent, his or her lawyer, or to a person
living at the Respondent’s home, service will be effective on the day the document was
served, provided it was served before 4:00 p.m. If it was done after 4:00 p.m., the
document is considered to have been served on the next day the Court is open.
Service by Fax
Rule 6(8) of the Family Law Rules provides that service of a document by fax may be
carried out only before 4 p.m. on a day when Court offices are open, unless the party to
be served consents or the Court orders otherwise. However, in practice, unless you’re late
serving the document, a lawyer or the other party will unlikely take issue with receiving a
fax after 4:00 p.m.
Please note that certain documents can’t be served by fax unless you obtain the consent
of the person being served. They include: a trial record, appeal record, factum, or book
of authorities.
Service by Regular Mail and Courier
If the document was served by mail, service will be effective the 5th day after the
document was mailed. If the document was served by courier, service will be effective the
day after the document was picked up by the courier service.
Documents can’t be served on a Sunday without the Court’s permission.
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Once a document has been served on the other party, the person who served the
document must complete an Affidavit of Service (Form 6B) describing how he or she
served the document on the other party and when.
FILING COURT DOCUMENTS:
Once the other party has been served with your court document you will need to file the
court document with the court, together with an original copy of your Affidavit of Service.
For some documents, such as an Application and an Answer, there are filing charges.
See “Court Fees” for a list of which documents have a filing fee.
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Chapter 9: What to Expect When Going to Court
CASE MANAGEMENT:
All cases in the Family Court and the Ontario Court of Justice are managed by a Case
Management Judge whose responsibility is to ensure that issues are resolved as quickly
and efficiently as possible. The theory of case management is to reduce the costs involved
and to encourage the parties to find their own mutually acceptable resolutions to their
family law issues with the help of a neutral facilitator, the Case Management Judge.
In the Family Court, cases will be put on either a “Fast Track” or a “Standard Track,”
depending on the issues in dispute.
Fast Track cases are all cases that don’t include claims for a divorce and/or claims
involving property. Standard Track cases are all cases in which there are claims for a
divorce and/or claims involving property. Fast Track cases are given a First Court Date
by the court clerk as soon as the Application is filed. In Standard Track cases, there’s no
First Court Date. Rather, the first step in the court process will be a Case Conference,
scheduled at the request of one of the parties.
FAMILY INFORMATION SESSION:
At the Superior Court of Justice in Toronto, when you issue your Application and it
includes claims for more than just a divorce, you’re given dates for both the Applicant
and the Respondent to separately attend a Family Information Session.
All parties must attend this Family Information Session in order to proceed to the next step
in the court process. You’ll be provided with a Certificate of Attendance certifying that
you have attended a Session.
These Sessions are for general information purposes only. They provide parents with
information about the effects of separation and divorce on children and advice about
how they can resolve disputes in ways that focus on their children’s best interests.
You and the other party will attend your session on a different date. You won’t be asked
any questions about your case and the person conducting the Session CANNOT provide
any advice or information specifically with respect to your case.
FIRST COURT DATE AND CASE CONFERENCE:
In the Family Court for “Fast Track” cases and in the Ontario Court of Justice your first
contact with the Court is at your First Court Date, which is scheduled by Court staff when
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the Application is filed. The purpose of this First Court Date is to ensure that all the
necessary documents have been served and filed. If they have been, the next step is a
Case Conference. You may be given a date for the Case Conference when you go for
the First Court Date. You can request to have the First Court Date and Case Conference
heard at the same time to move your case along more quickly and efficiently.
The Case Conference is the first contact with the Court in cases proceeding in the
Superior Court of Justice.
Prior to the Case Conference taking place, you’ll need to prepare and serve on your
spouse a Case Conference Brief and file the Brief with the Court. If you’re the Applicant,
you need to serve and file your Brief 7 days before the Conference date. If you’re the
Respondent, you must do so 4 days before.
The Case Conference is an informal attendance before a judge, often in their chambers,
to discuss your case. You and your spouse are required to attend the Conference. It gives
you and your spouse an early opportunity to discuss your case with a judge who may
provide his or her preliminary opinion about your case.
The goal of the first Case Conference is to narrow the issues and settle as many issues as
possible so that contested litigation can be minimized. If you’re unable to settle any of the
issues at a Case Conference, you can ask the Judge to make orders requiring the other
party to provide you with documentation and information that you require in order to
proceed with your case. The judge may provide a schedule for documentary disclosure
and may make other procedural orders, such as questioning of the parties.
The Judge will then either end the Case Conference, or if it looks like settlement is
possible only after disclosure is made, adjourn the Case Conference to a later date.
Additional Case Conferences can be scheduled at any time before trial.
Judges will typically only make procedural orders or orders with respect to financial
disclosure at a Case Conference. It’s unusual for a Judge to make an order with respect
to substantive issues, such as custody and access. These orders are made by judges
hearing motions.
MOTIONS:
After you attend the first Case Conference, either party is free to bring a motion to obtain
an order from a Judge that you weren’t able to obtain at the Conference. A motion is a
court procedure that is used to obtain certain types of orders from a Judge.
Typically the motion is for a “temporary order” until the issue is settled between the parties or
finally determined by the court. Judges may make temporary orders to resolve issues at any
time before trial.
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You can also bring a motion to obtain directions on how to proceed with the case or to
change existing orders.
Anyone who is a party to a case or anyone (other than a child) who is affected by the
case can bring a motion. The person who brings the motion is the “Moving Party” and
the person who responds is the “Responding Party.”
Pursuant to Rule 14(4) you CANNOT bring a motion until after you attend a Case
Conference. However, there are some exceptions. A motion can be brought if there’s a
situation of hardship or urgency (for example, you need a restraining order because
there’s an immediate danger to the health or safety of you or your children). As well, it
can be brought before a Case Conference if the motion is uncontested or you need a
procedural order (for example, permission from the court to file your Answer if you didn’t
file it in time).
If you bring a motion before a Case Conference, the judge will first decide whether your
case falls within one of the exceptions outlined in Rule 14(4). If the Judge decides that it
doesn’t, your motion will only be heard after a Case Conference takes place. You may
be responsible for paying the other party’s costs associated with responding to your
motion.
In order to bring a motion, you must prepare, serve the other party, and file with the
Court a Notice of Motion and provide evidence supporting your request for an order.
This is typically done by means of a sworn Affidavit.
If the motion deals with financial issues such as support, you must also prepare, serve,
and file a sworn Financial Statement.
The Moving Party must get a date for the motion from the court office and include this
date in the Notice of Motion so that the other party is notified of the hearing date. It’s
best and courteous to obtain the dates that the Responding Party and/or his or her
solicitor are available before booking the motion date, otherwise the Responding Party
may request an adjournment of the motion.
You must serve the other party with your motion materials 4 days before your motion is
scheduled to be heard. You must file your materials, including a Factum when required
and an Affidavit of Service evidencing the fact that you’ve served the other party, with the
court 2 days before the motion is scheduled. You should aim to do this by 2:00 p.m. at
the latest.
After all your documents are prepared, served, and filed the other party has the right to
also serve and file a responding Affidavit or even to bring their own motion. They must
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serve and file their responding material two days before the motion is scheduled. If they
are bringing a cross-motion, they must serve and file their cross-motion materials 4 days
prior to the motion.
In most cases, you will attend Court before a judge or a Master, on the date you
obtained, to argue the motion. Other motions can be brought in writing. These are
known by the Court as “basket motions.”
If you’re successful at an oral motion, you’re required to prepare a written order in the
proper form evidencing the Judge’s decision. You will need to get the other party or his or
her lawyer to approve the draft order as to form and content. When approved, the judge
will sign the order and each party will receive a copy of the signed Order.
SETTLEMENT CONFERENCE:
At some point in the process, a Settlement Conference will likely be held to make another
attempt to settle the issues remaining between you and your spouse before trial. You will
need to serve the other party and file with the Court a Settlement Conference Brief.
If you and your spouse are still not able to resolve your dispute, then the issues remaining
in dispute can be set down for trial where a judge can make a final order on the disputed
issues. It’s strongly recommended that you retain an experienced Divorce Lawyer to
represent you at trial.
TRIAL MANAGEMENT CONFERENCE:
At least 7 days before the commencement of the trial, a Trial Management Conference
will be held with a judge. This is a last ditch attempt to resolve the issues and to avoid
trial. If it appears a trial is inevitable, the judge will make sure that the case is ready to
proceed to trial and will set out a plan for the trial.
Before attending this Conference, you will need to serve the other party with a Trial
Management Conference Brief and file the Brief with the court.
If you and your spouse are still not able to resolve any of the issues in dispute, then those
remaining issues can be set down for trial where a judge will make a final order on the
issues.
Both Settlement and Trial Management Conference Briefs must be served and filed by the
Applicant 7 days prior to the Conference taking place, and 4 days prior by the
Respondent.
All motions (oral) and Conferences must be confirmed with the Court by 2:00 p.m. two
days prior to the date of the court appearance using Form 14C: Confirmation.
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TRIAL:
At the trial, each party will have the opportunity to testify under oath or affirmation and
call witnesses to testify on his or her own behalf. Everyone who testifies at a court hearing
may also be cross-examined by the other party or his or her lawyer. After all the evidence
is given, each party can make a final presentation to the court called “closing
submissions.”
Each party summarizes the evidence and the law and tries to convince the judge that his
or her position is the right one.
After the trial is heard, the judge will consider all the evidence, which includes the
testimony given in court, any Examination transcripts filed by the parties and any
documents accepted by the judge as evidence during the trial.
The judge will also review any legislation or case law submitted by the parties. The judge
will make a decision and advise you and the other party, either orally in Court or in a
written document, usually issued at a later time. The judge should provide you with his or
her reasons for his or her decision.
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Chapter 10: Appealing the Court’s Decision
If you’re unhappy with a judge’s decision following a trial you may be able to appeal
that decision to a higher court. However, there are select instances when an appellate
court will interfere with a trial judge’s decision. These are:
1.
if the trial judge erred in law; or
2.
if the trial judge made findings of fact or credibility that were the product of a
“palpable and overriding error.”
A “palpable error” is an error which is obvious, plain to see, or clear. Examples include
findings made in the complete absence of evidence, findings made in conflict with
accepted evidence, findings based on a misapprehension of evidence, and findings of
fact drawn from primary facts that are the result of speculation.
An “overriding error” is an error that is sufficiently significant to invalidate the challenged
finding of fact. You must demonstrate that the error goes to the root of the challenged
finding of fact such that the fact can’t stand in the face of that error.
The “palpable and overriding” standard applies to all factual findings whether based on
credibility assessments, the weighing of competing evidence, expert evidence, or the
drawing of inference from primary facts.
Appeals must be filed within certain time limits set out in the legislation or court rules that
apply to the case. For example appeals of orders made by a judge under The Family Law
Act must be filed within 30 days of the filing of the order with the court.
Appeals of orders under the Divorce Act must be filed within 30 days after the court
made the order.
Appeals can be complicated as you cannot simply appeal a decision because you don’t
like the decision or feel it was wrong. We would strongly recommend that you obtain
legal advice from a qualified Divorce Lawyer before you decide to appeal an order as
well as to represent yourself in court in the event that you do appeal the order.
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Chapter 11: Practical Tips for Your Day in Court
 Arrive at the Court House 30 minutes before your attendance is scheduled. Some
courts are very busy and have long court lists. You may have to sift through 5 pages of
court lists before you find your case on the list and the information of what judge (or
Master) will be hearing your matter and in what court room.
 If a judge is presiding over your case, refer to him or her as “Your Honour.” If a
Master is presiding over your case, you may call him or her “Master.” A judge will be
wearing a black gown with a red sash.
 As soon as you enter the court room, you need to confirm with the Court Registrar or
Court Service Officer that you’re in attendance and are ready to have your case
heard. The Court Registrar wears a black gown and is seated below the Judge’s
Bench. The Court Service Officer wears a uniform with a dark blue blazer and is also
seated at the front of the court room. Typically, they will have a form for you to fill out
and hand.
 Any exhibits or documents you may have to give to the judge must be handed to the
Court Registrar. On most occasions you will not be able to hand over any documents
until you have received the judge’s permission to do so.
 When the judge or Master enters and exits the room you must stand. If the judge or
Master addresses you, you must stand.
 Be courteous and respectful at all times, both to the judge or Master and to the
opposing party.
 Don’t interrupt the judge or the other party while they are speaking in the court room.
Be patient. Most judges make sure that you have the opportunity to respond to
arguments or statements made by the other party.
 When the other party is speaking, don’t make “peanut gallery” comments such as
“that’s a lie” or “you’re a liar.”
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Chapter 12: Alternative to Court
I’ve been around the Courts for a long time. Unless you’re a lawyer that loves to litigate
(like me) or a litigant with a lot of money to burn and complicated property issues to
resolve, I recommend that you stay away from the Courts. The Family Court process is a
money pit that will leave you and your spouse financially ruined and what’s left of your
family, emotionally scarred for life.
It takes two to make these alternatives work. You and your spouse must agree to opt out
of the Court system. That usually means your spouse won’t contribute to the cost of the
alternative process or simply refuses to participate in any form of dispute resolution
There are a number of alternatives to going to court to resolve your Family Law issues.
These are generally called “Alternative Dispute Resolution” mechanisms.
MEDIATION:
The Process
Mediation is a process whereby spouses voluntarily and jointly retain an impartial,
professionally trained mediator (often a seasoned Divorce Lawyer) to assist them in
resolving their disputed Family Law issues. The mediator’s role is to act as a facilitator, to
help the spouses reach a fair and mutually acceptable agreement.
The mediator can’t provide an opinion, take sides, or make decisions for the spouses. It’s
also not the mediator’s role to give legal advice.
Before mediation begins, the spouses must decide whether the mediation will be open or
closed. In open mediation, the mediator may be asked by either spouse to write a full
report on what happened during the mediation, including the reasons why it was or was
not successful. If the mediation isn’t successful and the case proceeds to a court trial, the
report may be taken into consideration by the trial judge. In addition, the mediator could
be required by either spouse to testify in court.
In closed mediation, the information exchanged between the spouses is kept confidential.
The mediator’s report will only state whether an agreement was reached. Neither spouse
can request that the mediator testify in court.
Often the mediator will meet with both spouses together just to hear each spouse’s
positions on the disputed issues. When the parties are ready to begin negotiating but
where there is hostility between the spouses, he or she will separate the spouses into
different rooms. The mediator can then shuttle between the two spouses to negotiate an
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agreement. Parties who are unhappy with the mediation process can leave it at any time.
It won’t affect your legal rights or options.
At the conclusion of a successful mediation, the terms of the settlement must be put into
writing and signed at the mediation.
These terms can subsequently be incorporated into a formal Separation Agreement.
Mediators are required to advise and encourage clients to seek Independent Legal
Advice before finalizing any binding agreement.
You should obtain Independent Legal Advice from a qualified Divorce Lawyer before you
attend mediation so that you are aware of your legal rights and obligations.
Choosing a Mediator
Publicly funded mediation for Family Law matters is provided at all 17 Family Court
locations in Ontario. These services include mediation of all legal issues arising upon
family breakdown including custody, access, support, and equalization of net family
properties.
Mediation is available on-site, in the court facility, and off-site, in the mediators' offices.
On-site mediation is free. User fees are charged to clients for off-site mediation on a
sliding scale based on the number of dependents and income.
Mediation is voluntary and isn’t appropriate for everyone, particularly in cases where
there has been a history of violence or abuse. Where one party is afraid of or intimidated
by their spouse/partner, mediation will likely not be a viable option.
In order to ensure that cases are appropriate for mediation, court appointed mediators
are required to screen their clients to ensure that:

abuse hasn’t occurred that has rendered either party incapable of mediating

no harm will come to either party or the children as a result of mediating

the parties' desire to mediate is voluntary

any inequality in bargaining power can be managed so as to ensure that
negotiations are balanced and procedurally fair

parties are psychologically ready to mediate and have the capacity to do so

the complexity of the case doesn’t exceed the mediator's education, training, and
competence
In addition, there is a roster of family mediators available to all clients of the court. These
mediators undertake to charge a tariff of $300.00 per party for the first four hours of
mediation (including preparation and screening), after which they may charge their usual
fee.
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As well, you can contact an experienced Divorce Lawyer who can recommend family
mediators for your case.
ARBITRATION:
Arbitration is a formal process conducted under the Arbitration Act and is similar to a trial.
The arbitrator hears the evidence of each spouse and the arguments made by each spouse,
and then delivers a written decision that is as enforceable as a court order.
Spouses who agree to submit to arbitration jointly select an arbitrator, sign an Arbitration
Agreement, and schedule a date for the hearing. Typically you can obtain an arbitration
date long before a trial date.
The cost of arbitration is either shared by the spouses or, if they wish to give the arbitrator
the power to award costs, the arbitrator may order one spouse to pay the other spouse’s
costs of the arbitration.
MEDIATION/ARBITRATION (“MED/ARB”):
Mediation/arbitration is a dispute resolution method that is a hybrid of mediation and
arbitration. Mediation/arbitration is prohibited by the Arbitration Act; however, the
spouses may specifically waive the prohibition.
In mediation/arbitration, the mediator/arbitrator first attempts to settle the issues through
mediation. Mediation may turn into arbitration if the mediator/arbitrator determines that
mediation has failed.
In this case, the mediator/arbitrator will ignore all the information that had been
exchanged in the mediation and will hear the matter afresh as an arbitration. The
mediator/arbitrator can’t mediate while he or she is arbitrating and can’t arbitrate while
he or she is mediating.
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Chapter 13: Lessons Learned
When all is said and done, hopefully you will have learned something after going
through the meat grinding experience of the Family Courts. In case you’re too shellshocked to retrieve these lessons from your subconscious mind, here are 10 lessons you
must learn before you say “I do” again:
1.
Don’t get married again: Only married spouses have statutory property rights in
Ontario, including the right to request an equalization of net family property. In
order to obtain an interest in their spouse’s property, a common law spouse must
commence an Application based on the equitable doctrine of constructive or
resulting trust, which trusts are difficult to establish.
2.
Domestic Contract: If you must get married again, a Marriage Contract or Cohabitation Agreement is a very effective method of protecting your assets from being
subject to a property dispute if you and your spouse separate, whether based on
statute or in equity. Typically these contracts are prepared before parties marry or
cohabit but they can be made afterwards.
Domestic contracts are particularly advisable for people who are going into a
second marriage/common law relationship and have significant business interests
or have substantially more assets than the other future spouse.
To ensure the domestic contract’s enforceability and to protect the contract from
being set aside by the courts, full and complete financial disclosure must be made
by both spouses, both spouses must obtain Independent Legal Advice, and both
spouses must enter into the contract under their own free will, free from any
compulsion or pressure.
3.
Forget about joint accounts. Keep your accounts in your own name. This includes
bank accounts and credit card accounts. Otherwise, each person on the joint
account will be liable for the full amount of the over-draft or debt. Furthermore, don’t
deposit monies received as a gift by a third person or by inheritance into a joint
bank account. Joint accounts are presumed to be shared equally. As a result, you
will only be entitled to exclude one half of the value of the gift or inheritance unless
you can rebut the presumption.
4.
Pay off your debts before you get married again. Any debts or liabilities you have
on the date of marriage will decrease the value of the assets that you have, and
therefore your future allowable deduction on equalization of net family property.
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In order to ensure that your assets have the greatest value possible, make sure to
pay off your debts and liabilities before you get married.
5.
Just after you tie the knot, obtain documentary proof of the value of all your assets,
debts, and liabilities as at the date you were married. The Ontario Family Law Act
entitles a married spouse to deduct from the calculation of their net family property
the value of property, other than a matrimonial home, that the spouse owned on the
date of marriage, after deducting the spouse’s debts and other liabilities.
A court won’t allow you this deduction if you can’t provide documentary evidence of
the assets, debts, and liabilities. So if you have $50,000.00 in RRSPs on the date of
your marriage, make sure to keep a copy of the RRSP statement showing the
balance. Obtaining all the documents just after you tie the knot will save you the
trouble of trying to find them years later.
6.
Protect your financial privacy. Remove your existing financial records from the
matrimonial home. Arrange to have your financial records mailed somewhere other
than your home, for instance to a mail box or at work. This includes bank, RRSP,
and investment statements, credit card statements, life insurance, and pension
correspondence.
7.
Don’t invest gift or inheritance monies into the matrimonial home. The Ontario
Family Law Act allows you to exclude from the calculation of your net family
property, property you received during your marriage from an inheritance or gift,
and property that can be traced to gifted or inherited property.
For example, if you received a valuable piece of artwork during your marriage from
your deceased aunt, sold the artwork, and used the money to buy a new car, the
car would be excluded from the calculation of your net family property.
This exclusion doesn’t apply to an inherited matrimonial home or to inherited money,
property, etc. that has been invested into the matrimonial home. It doesn’t matter if
the inherited money was used as a down payment or toward renovations. If it was
applied towards the matrimonial home, you can’t exclude it from the calculation of
your net family property and it will be subject to equalization.
8.
Evidence all gifts: You should ensure that all gifts received during the marriage from
a third person are evidence in writing, including the intention of the donor when
making the gift. If the gift was intended for the joint benefit of you and your spouse,
you will only be entitled to deduct one half of the value of the gift from your net
family property.
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9.
Place property into a trust for the benefit of your loved ones. If you place assets into
a trust for the benefit of your loved ones, provided you’re not the trustee, you cease
to have any interest in the assets or control over them. As a result, they should be
excluded from the equalization process.
You need to be careful with the timing of when you place the property into a trust as
courts have held that the creation of a trust just prior to separation constitutes an
intentional depletion of assets and therefore included the property in a spouse’s net
family property calculations.
It’s best to be proactive and create a trust well before a possible separation or
divorce is on the horizon.
10. Don’t maintain the same matrimonial home. The value of a matrimonial home
brought into a marriage and used as a matrimonial home, but sold prior to a
separation, is deductible from that spouse’s net family property. It doesn’t matter that
proceeds from the sale were used to purchase the matrimonial home existing at the
time of separation.
These are just some of the lessons and strategies you must learn for the next go-around,
whether you plan on marriage or cohabitation.
There are plenty of others. Many of them and answers to lingering questions that I’m sure
you have are answered at the “Resource Centre” available to MyOntarioDivorce.com
members.
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Chapter 14: MyOntarioDivorce.com
Self-representing in Family Court is confusing
and frustrating. It can take upwards of a
month to prepare the paperwork you need to
proceed with your case and even then there’s a chance that you’ll be turned away by the
court clerk or Judge. Having a lawyer guide the way can make the process easier, but it
takes a major toll on your wallet. Access to justice shouldn’t only be for the wealthy. As
someone whose net worth isn’t in the millions, you shouldn’t have to spend your entire life
savings resolving problems caused by family disputes.
What you should be able to do is get the information and help you need to do
uncontested matters yourself and contested matters with as little lawyer involvement and
expense that the matter requires in light of its value and complexity. For Simple and Joint
Divorce Applications and Separation Agreements, you should be able to fill out an online
Questionnaire which inputs your personal information and produces your customized
document for you. If you want your document reviewed by an experienced Family Law
Lawyer, which should be doable online at your convenience. And if your matter is
headed to court, you should be able to have a FREE Case Analysis from an experienced
Family Law Lawyer to guide you to an affordable divorce solution that suits your case and
budget. Most importantly, you should be able to close one chapter in your life with little
hardship so that you can move on with the next. MyOntarioDivorce.com offers all of this
and more.
MyOntarioDivorce.com is designed to generate Simple and Joint Divorce Applications
and Separation Agreements for you. No lawyer is needed unless you want your
documents reviewed or have a legal question. In either case you can use our Ask Our
Lawyers online service at a fraction of the cost of retaining a traditional lawyer. It offers
the information and support you need to prepare uncontested divorce documents on your
own and save hundreds of dollars in the process. It’s simple! You answer an online
Questionnaire and end up with a completed document.
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Chapter 15: The Truth About Family Law Disputes
The truth is, family law disputes are best settled out of court. Why allow a stranger (the
Judge) to decide what’s best for you and your children? Lawyers and Judges are not
trained to deal with the emotional complexities that cause otherwise reasonable people to
argue over the family pet, or worse, the children. Save yourself heartache and money by
coming to an agreement with your spouse. Be prepared to listen and compromise. Let her
have the furniture; let him have the television. If you have children, picture them as you
speak to one another. They need both of you, they need stability. What they don’t need
is the disruption and destitution caused by the family court process. If you don’t have
children or your children are now adults, compromising with your spouse will secure your
emotional state of mind and bank account. But in order to arrive at a fair agreement, you
must educate yourself about your rights and obligations. The best way to do that is to go
to MyOntarioDivorce.com and check out the FREE Resource Centre.
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Chapter 16: Our Mission
The delivery of family law services in Ontario is unnecessarily complicated and costly,
preventing most people from accessing the legal services necessary to properly resolve
their most basic legal problems. The cost of a Family Law Lawyer in Ontario is too
expensive and open-ended to be accessible to anyone except the wealthy.
My firm, Berman Barristers, is the only Family Law firm in Ontario dedicated to the
development of innovative divorce solutions as an alternative to traditional lawyers. By
developing MyOntarioDivorce.com, Berman Barristers has designed the first and only
online tool in Ontario that automatically creates personalized Divorce Applications and
Separation Agreements securely and from the comfort of your own home at a fraction of
the cost.
MyOntarioDivorce.com will even help you if you and your spouse CANNOT agree on
issues by referring you to Berman Barristers, where you will be offered a FREE Initial
Consultation Call with an experienced Family Law Lawyer who will analyze your current
situation and issues and recommend a future course of action from an array of the Firm’s
unique and innovative solutions that range from do-it-yourself with assistance to full lawyer
representation on a pay-as-you-go basis. Pay once and only for what you need. That’s
what we call “Innovative Divorce Solutions” or peace of mind in turbulent times.
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